Case Note & Summary
The appellant, Sitaram Dhanad, filed a private complaint before the Judicial Magistrate, First Class, Gangapur, alleging that on 1.8.2009, the respondents (accused) assaulted him with a wooden handle of a spade and sticks, causing serious injuries, and also abused him. The complainant was treated at a public health centre. When the police refused to register an FIR, he filed a private complaint (RCC No. 196/2009) under Sections 324, 323, 504, 506 read with 34 IPC. The learned Magistrate dismissed the complaint in default and discharged the accused on 17.8.2009. The appellant challenged this order by way of criminal appeal. The High Court noted that the dismissal in default amounts to an acquittal, and the appeal was maintainable. The court observed that the Magistrate had not given the complainant an opportunity to be heard before dismissing the complaint. Accordingly, the High Court allowed the appeal, set aside the impugned order, and restored the complaint to its original number for trial on merits, directing the Magistrate to proceed in accordance with law.
Headnote
A) Criminal Procedure - Dismissal of Complaint in Default - Acquittal - Sections 256, 378 CrPC - The dismissal of a private complaint in default and discharge of accused amounts to an acquittal, against which an appeal lies under Section 378 CrPC - The court held that the Magistrate ought not to have dismissed the complaint without giving the complainant an opportunity to be heard, and restored the complaint for trial on merits (Paras 2, 6).
Issue of Consideration
Whether the order of the learned Judicial Magistrate dismissing the complaint in default and discharging the accused is sustainable in law.
Final Decision
The appeal is allowed. The impugned order dated 17.8.2009 passed by the learned Judicial Magistrate, First Class, Gangapur in R.C.C. No. 196 of 2009 is set aside. The complaint is restored to its original number. The learned Magistrate is directed to proceed with the complaint in accordance with law and decide it on merits.
Law Points
- Dismissal of complaint in default amounts to acquittal
- Appeal against acquittal maintainable
- Restoration of complaint when dismissal was without hearing complainant
Case Details
2012 LawText (BOM) (10) 21
Criminal Appeal No. 621 of 2012
Shri S.D. Kotkar for appellant, Shri P.P. Khandagale for respondent nos. 1 to 4, Shri B.J. Sonawane, A.P.P. for respondent no.5
Sitaram s/o Ambadas Dhanad
Ashok s/o Manaji Gavhane, Kakasaheb s/o Ashok Gavhane, Ganesh s/o Bhausaheb Gavhane, Gokul s/o Bhausaheb Gavhane, The State of Maharashtra
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Nature of Litigation
Criminal appeal against order of dismissal of private complaint in default and discharge of accused.
Remedy Sought
Appellant (original complainant) sought setting aside of the order dated 17.8.2009 dismissing his complaint in default and restoration of the complaint for trial on merits.
Filing Reason
The appellant alleged that on 1.8.2009, the accused persons assaulted him with a wooden handle of spade and sticks, causing serious injuries, and abused him. Police refused to register FIR, so he filed a private complaint.
Previous Decisions
The learned Judicial Magistrate, First Class, Gangapur, by order dated 17.8.2009, dismissed the complaint in default and discharged the accused.
Issues
Whether the order of dismissal of complaint in default and discharge of accused is sustainable in law.
Submissions/Arguments
Learned counsel for the appellant contended that the respondents were served with summons but the Magistrate dismissed the complaint in default without hearing the complainant.
Ratio Decidendi
Dismissal of a private complaint in default and discharge of the accused amounts to an acquittal, and such an order can be challenged by way of appeal. The Magistrate must give the complainant an opportunity to be heard before dismissing the complaint in default.
Judgment Excerpts
This is an appeal preferred by the appellant (original complainant) challenging the order, dated 17.8.2009, passed by the learned Judicial Magistrate, First Class, Gangapur, thereby dismissing the complaint filed by the complainant in default and discharging the accused...
In the result, the appeal is allowed. The impugned order dated 17.8.2009 passed by the learned Judicial Magistrate, First Class, Gangapur in R.C.C. No. 196 of 2009 is set aside. The complaint is restored to its original number.
Procedural History
On 1.8.2009, alleged assault occurred. Complainant filed private complaint (RCC No. 196/2009) before JMFC Gangapur. On 17.8.2009, the Magistrate dismissed the complaint in default and discharged the accused. On 20.10.2012, the High Court allowed the appeal and restored the complaint.
Acts & Sections
- Indian Penal Code, 1860: 324, 323, 504, 506, 34
