The court has the discretion to dismiss a complaint case for want of prosecution, but this discretion must be exercised judicially and fairly without impairing the cause of administration of criminal justice.

Order On Board

06/01/2023 Heard on IA No.01, application for condonation in filing the appeal.

02. Upon due consideration, the above application is allowed and delay of 143 days in filing the appeal is hereby condoned.

03. By this petition, the appellant/complainant is seeking leave to appeal under Section 378(4) of CrPC against the order dated 24.5.2022 passed by the Judicial Magistrate First Class, Bagicha, Distt. Jashpur in Complaint Case No.218/2018 by which the complaint case under Section 138 of the Negotiable Instruments Act was dismissed for want of prosecution.

04. Upon due consideration, the appellant is granted leave to appeal.

05. Learned counsel for the appellant submits that there was no deliberate default on the part of the appellant in appearance before the trial Court. The appellant was out of station and unfortunately her counsel was also out of station on 24.5.2022. He submits that in identical matter i.e. CrMP No.295/2019 the co-ordinate Bench of this Court set aside the order of the trial Court dismissing the complaint case for want of prosecution vide Annexure A/3.

06. Heard learned counsel for the appellant and perused the order impugned and other material placed on record.

07. In the matter of Associated Cement Co. Ltd. Vs. Keshvanand reported in (1969) 1 SCC 687, Hon'ble the Apex Court held as under:-

“18.Reading the Section in its entirety would reveal that two constraints are imposed on the court for exercising the power under the Section. First is, if the court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with his attendance and proceed with the case. When the Court notices that the complainant is absent on a particular day the court must consider whether personal attendance of the complainant is essential on that day for progress of the case and also whether the situation dos not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice.”

08. Again, in the matter of Anand Kumar Agrawal Vs. Pawan Sahu in CRMP/943/2019 vide order dated 15.04.2019 this Court held in para

7 as under:

“7. Dismissal of the complaint case was not the only option before the trial Court. The trial Court could have adjourned the case to some other date as per the provisions of Section 256(1) Cr.P.C. The trial Court should have proceeded to serve summon to the respondent and after appearance of the respondent the case should have been decided on merits and it should not have been sent to record room without deciding issues between the parties and without providing opportunity to adduce evidence but that is not done in the present case, therefore, the order passed by the trial Court is not sustainable.”

09. Considering the facts and circumstances of the case and the law laid down in the matters of Associated Cement (supra) and Anand (supra), this Court finds that dismissal of the complaint case and acquittal of the respondent/accused due to non-appearance on the part of the complainant is improper and unjustified.

10. Accordingly, the appeal is allowed at the admission stage itself and the impugned order dated 24.5.2022 of the trial Court is set aside. The matter is remitted back to the Judicial Magistrate First Class, Bagicha, Distt. Jashpur for fresh adjudication of the case on merits after giving opportunity of hearing and adducing evidence to the complai