The trial court should exercise its discretion properly and judicially when considering the dismissal of a complaint and acquittal of the accused.

JUDGMENT : – This appeal is against the order dated 9-9-2010 passed by the Judicial Magistrate First Class, Udaipura, District Raisen, dismissing the complaint bearing No. R. T. 115/2008, Irfan Qureshi vs. Nayeem Khan and others under sections 323, 323/34 of Indian Penal Code filed by the appellant.

2. The order dated 9-9-2010 passed by the learned Magistrate reads as under : –

3. A perusal of the order sheets drawn in R. T. No. 115/2008, Irfan Qureshi vs. Nayeem Khan and others reveals that from 23-5-2007 on-wards when the case was posted for trial, the complainant/appellant was present in the Court on a number of occasions, though he was occasionally absent but he was represented through his lawyer and whenever he did not turn up before the Court, exemption applications were filed by his counsel. On the relevant date i.e. 9-9-2010, the complainant was called absent and the private complaint filed by him was dismissed.

4. According to the learned counsel for the appellant/complainant, the charges had been framed against the respondents and appellant was represented by a lawyer. Therefore, even if on a singular occasion, appellant/complainant could not appear, it was not proper for learned JMFC to dismiss the complaint as he pursued the complaint since 2007 and remain present on the number of occasions. It is further submitted that on the date when the complaint was dismissed, the personal appearance of the complaint was not necessary as the case was fixed for consideration of compromise application. Learned Magistrate has committed error in dismissing the complaint. It is submitted by the learned counsel for the appellant that the impugned order dated 9-9-2010 passed by the learned JMFC, dismissing the complaint filed by the appellant is against settled position of law.

5. The case of the appellant in nut-shell is that he filed complaint under sections 147, 148, 149, 323, 324, 452, 506 of Indian Penal Code before learned JMFC. After recording the evidence under section 200 and 202 of Criminal Procedure Code learned JMFC took cognizance against the respondents/accused for commission of offence under section 323, 323/34 of Indian Penal Code. Respondents/accused appeared before the Court and were released on bail. Learned trial Court stated particulars of crime and framed charges against respondents/accused on 18-11-2009. On 26-7-2010 parties filed compromise application under section 320(1) of Criminal Procedure Code. On 9-9-2010, case was fixed for consideration of compromise application. Therefore, it was not necessary for the complainant to remain present in the Court. Thus, learned JMFC committed error in dismissing the complaint.

6. The facts of the case are not in dispute. It is also not in dispute that on the date when the complaint was listed for hearing, complainant was not present in the Court and in his absence, learned trial Court dismissed the complaint and acquitted the respondents/accused persons.

7. No doubt offence under section 323 of Indian Penal Code is triable in Chapter XX as a Trial of summons cases by Magistrate. The procedure which is to be followed in case of non appearance of complainant or death of complainant has been provided under section 256 of Criminal Procedure Code. It has been held by the Supreme Court in relation to section 256 of the Code in the case of Mohd. Azeem vs. A. Venkatesh and anr., reported in (2002) 7 SCC 726, as under: –

12. It has been held by the Supreme Court in relation to section 256 of the Code in the case of Mohd. Azeem vs. A. Venkatesh and anr., reported in (2002) 7 SCC 726, that on one singular default in appearance on the part of the complainant, the dismissal of the complaint under section 138 of the Negotiable Instruments Act is not proper. The cause shown by the complainant of his absence that he had wrongly noted the date should not have been disbelieved and it should have been held to be a valid ground for restoration of the complaint. The Supreme Court has furthe