The central legal point established in the judgment is that a complainant's absence at the pre-summoning stage cannot be a ground for dismissal, and the court has the power to set aside orders resulting in miscarriage of justice.

AMAN CHAUDHARY, J.

1. The present petition has been filed under Section 482 of the Code of Criminal Procedure for setting aside order dated 21.03.2018 passed by Judicial Magistrate, 1st Class, Jalandhar vide which the complaint of the petitioner was dismissed in default alongwith his application for exemption from personal appearance.

2. The allegations made in the complaint are that the petitioner was having a landed property in joint possession, for which the civil suit was pending. Despite that respondent Nos. 1 and 2 were trying to raise construction over the same. On 20.05.2013, he was caught by the accused and beaten up and snatched Rs.10,000/-, camera and gold ring and the sim from his mobile phone was also taken out. They abused, demeaned and humiliated him. When he raised hue and cry, his family members and other persons saved him by coming at the spot and got him admitted in the hospital.

3. Learned counsel contends that the complaint was instituted on 27.07.2013, however, the summoning order had not been passed. He was attending the proceedings by appearing himself or through his learned counsel. However, on the date when the complaint was dismissed in default vide order 21.03.2018, he had filed an application for exemption on the ground that his railway tickets could not be booked for travel to Jalandhar, he being the resident of Calcutta. Though, his counsel appeared on his behalf before the Court, but his complaint was dismissed for non-prosecution. His absence was neither intentional nor wilful. A serious prejudice would be caused to the petitioner in case he is not granted an opportunity to seek adjudication of the matter on its merits.

4. Learned counsel for the respondents submits that the trial Court has rightly dismissed the complaint, as the petitioner could not appear on the previous dates also. The petition is not maintainable as the petitioner should have filed a revision to challenge the impugned order. Thus, he prays for the dismissal of the present petition.

5. Heard the counsel for the parties.

6. The issue that arises for consideration in the present case is that whether on account of non-appearance of the complainant, at the pre-summoning stage, the complaint could have been dismissed.

7. A gainful reference can be made to a judgment in Joga Singh vs. State of Punjab, 2007(1) RCR (Criminal) 770, wherein, this Court set aside the order of the trial Court whereby the complaint was dismissed in default at pre-summoning stage, against which, revision was filed, which also came to be dismissed by the Additional Sessions Judge, on the ground that the same was not maintainable and the respondent-accused had taken an objection that petition under Section 482 CrPC would not be maintainable after the complainant-petitioner had already availed of his remedy of revision, as such petition would amount to a second revision. It was observed and held thus: “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.”

8. Further, by following the aforesaid judgment, in Gurbachan Singh vs. Amar Singh 2011(2) RCR (Crl.) 264, the complaint that was dismissed in default by the trial Court, was ordered to be restored.

9. Reverting to the instant case, it would be apt to refer to the application preferred by t