Case Note & Summary
The applicant, Agasti Sarv Seva Sangh, filed a criminal complaint against the respondent, Kailas Rathod, alleging offences under Section 138 of the Negotiable Instruments Act and Section 420 of the Indian Penal Code. The Magistrate ordered process only under Section 138 of the NI Act. The complaint remained pending for about five years as the respondent's presence could not be secured despite summons and warrants. On 31.08.2013, the Magistrate dismissed the complaint for default, noting that the complainant had failed to secure the accused's presence despite ample opportunity. The order was titled 'Special Drive Dated 31.08.2013'. The applicant then filed a criminal revision application before the High Court. The High Court observed that the Magistrate's order was passed without issuing any notice to the complainant, which is illegal and contrary to the principles of natural justice. The Court held that the dismissal for default without notice is not sustainable. The Court allowed the revision application, set aside the Magistrate's order, and restored the complaint to its original number. The Court directed the Magistrate to proceed with the complaint in accordance with law.
Headnote
A) Criminal Procedure Code - Dismissal of Complaint for Default - Section 482 CrPC - Restoration - The Magistrate dismissed the complaint for default without issuing notice to the complainant, which is illegal and contrary to principles of natural justice - The High Court, exercising inherent powers under Section 482 CrPC, can restore the complaint when the dismissal is without jurisdiction or illegal - Held that the order of dismissal is set aside and the complaint is restored to its original number (Paras 4-6).
Issue of Consideration
Whether the dismissal of a complaint for default by the Magistrate without issuing notice to the complainant is legal and whether the High Court can restore the complaint under Section 482 CrPC
Final Decision
The revision application is allowed. The order dated 31.08.2013 passed by the learned Judicial Magistrate First Class, Akole, dismissing the complaint for default is set aside. The complaint is restored to its original number. The Magistrate is directed to proceed with the complaint in accordance with law.
Law Points
- Dismissal of complaint for default without notice to complainant is illegal
- Magistrate must issue notice before dismissing for default
- Restoration application under Section 482 CrPC maintainable when no alternative remedy
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