The main legal point established in the judgment is that the dismissal of a complaint in default for want of prosecution amounts to acquittal of the accused, and the only remedy for the complainant is to file an appeal under Section 378 Cr.P.C.

DEEPAK GUPTA, J.

Petitioner is aggrieved by the order dated 24.07.2019 (Annexure P.1) passed by learned Judicial Magistrate Ist Class, Chandigarh recalling the earlier order dated 24.01.2018, in Criminal Complaint No.1843 of 2015, M/s Intex Technologies (India) Ltd Vs. Hardeep Singh Sandhu.

2. It is contended by learned counsel for the petitioner that complaint was dismissed in default for want of prosecution vide order dated 24.01.2018 in the presence of the accused- petitioner and his counsel and therefore, the dismissal of the complaint in default for want of prosecution amounted to acquittal of the accused. However, learned Court on an application moved by the complainant- respondent, restored the complaint vide impugned order dated 24.07.2019. Learned counsel contends that it is impermissible under law.

3. Learned counsel has referred to Hardev Singh Vs. Savi Enterprises, decided by a co-ordinate Bench of this Court on 05.09.2022 in CRM-M-5287 of 2021; and Atul Sood Vs. Jalandhar Transport Cooperative Society Pvt. Ltd and another in CRM-M-6678 of 2015 decided on 07.12.2017.

4. Despite service, nobody made appearance on behalf of the respondent- complainant to contest the petition.

5. Order dated 24.01.2018 whereby learned Magistrate had dismissed the complaint in default, reads as under:-

“Case file taken up again after lunch break. Case called several times but none appeared on behalf of complainant. It seems that the complainant is not interested in pursuing the present complaint. It is already 03:30 P.M. Further wait is not justified. Therefore, present complaint is hereby dismissed for want of prosecution. Accused stands discharged in this case. File be consigned to the records after due compliance.”

6. Section 256 Cr.P.C reads as under:-

256. Non- appearance or death of complainant.

(1) If 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, notwithstanding 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 complainant 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.”

7. It is clear on bare perusal of afore-said provision that following options are available to the Court, when complainant in a summons case does not appear on appointed date:-

(i) to acquit the accused;

(ii) if for some reasons it thinks proper, to adjourn the hearing of the case to some other date;

(iii) to dispense with the attendance of the complainant and proceed with the case, in case personal appearance of complainant is not considered necessary.

8. In the present case, when the complainant did not appear on 24.01.2018, learned Magistrate exercised the first option i.e. to dismiss the complaint and acquit the accused, though word “discharge” has been used. Acquittal can be challenged only before this High Court under Section 378 Cr.P.C. Magistrate has no power to restore the complaint, which was dismissed in default, when accused has been acquitted, in a summons case. Even the revisional Court has no such power.

This aspect came up for consideration in Atul Sood's case (supra), whereas it was held as under:-

"Learned counsel for the petitioner inter-alia contends that the revisional Court had no jurisdiction to restore the complaint, which was dismissed in default for want of prosecution on account of non appearance of the respondent and therefore, the impugned order Annexure-P6 is illegal. In support of his contention, he has