The absence of a complainant pursuing a revision does not justify dismissal of the complaint under Section 203, and revisions against orders treating applications under Section 156(3) as complaints are permissible based on case specifics.

JUDGMENT :

Ram Manohar Narayan Mishra, J.

1. Counter affidavit filed on behalf of respondent no.2 is taken on record.

2. Heard learned counsel for the petitioner, learned counsel for the respondent nos.2 and 3, learned A.G.A. for the State and perused the record.

3. The instant petition filed under Article 227 of the Constitution of India has been filed by the petitioner against order dated 11.10.2017 passed by learned Additional Sessions Judge, Court No.9, Gorakhpur in Criminal Revision No.21 of 2017 as well as order dated 29.05.2017 passed by learned Chief Judicial Magisrate Ist, Gorakhpur.

4. By impugned order dated 29.05.2017, the Chief Judicial Magistrate Ist, Gorakhpur dismissed the complaint filed by the petitioner under section 203 Cr.P.C. Prior to dismissal of complaint filed under section 203 Cr.P.C., the petitioner had moved an application under section 156(3) Cr.P.C. before learned Magistrate with an allegation that there was enmity of litigation between informant/Rajan Yadav and opposite parties namely Ram Samuj Gupta and Rajendra Gupta. On 30.08.2016 at around 12:30 hours, the informant had gone to Collector Gorakhpur in relation to some work and when he was on way back to his home, the opposite parties accompanied by three unknown persons intercepted him and assaulted him by kicks, fists and sticks. One of the members of opposite party namely Rajendra Gupta tried to press his neck with intention to kill him and Ram Samuj Gupta snatched Rs.10,000/-and one gold chain from the informant.

5. Aforesaid application was treated as complaint by learned Chief Judicial Magistrate vide order dated 21.12.2016. The case was fixed for recording statement of the informant under section-200 Cr.P.C.

6. Feeling aggrieved by the order of the learned Chief Judicial Magistrate, whereby the application under section 156(3) Cr.P.C. was treated as complaint, the informant preferred a criminal revision before the Court of Sessions, which was registered as Criminal Revision No.21 of 2017. During pendency of criminal revision, the case was fixed for recording statement of the complainant under section 200 Cr.P.C. before the court below and on account of absence of the complainant/applicant/informant on three consecutive dates, the complaint was dismissed by learned Chief Judicial Magistrate, Gorakhpur under section 203 Cr.P.C. on that date i.e. 29.05.2017. This factual situation was also taken into account by learned Sessions Judge by dismissing the criminal revision vide impugned order dated 11.10.2017.

7. Learned counsel for the petitioner submitted that the absence of the complainant/petitioner before the trial court was deliberate as he was pursuing remedy of criminal revision before the Court of Sessions and he could not appear before the trial court for recording his statement under section 200 Cr.P.C. Learned court below without taking into consideration this fact dismissed the complaint under section 203 Cr.P.C. on account of non-appearance of the complainant. There is merit in the allegations of the complainant/informant as the injury report of the petitioner reveals that his medico legal examination was conducted on 31.08.2016 at 3:45 p.m. in Government Hospital, where three visible injuries and one pain was found. The injuries included contused swelling over left side of head, injuries on just below left eye and there was hemorrhage in the eye and the injured complainant was referred to eye-surgeon for expert opinion.

8. Per contra, learned counsel for the respondent nos.2 and 3 submitted that the petiti